15 September 2008

Bush report says India complying with Hyde Act on Iran

As part of the 123 approval process, the Bush administration forwarded a set of documents to Congress last Friday, including a report pursuant to Section 104(c) of the Hyde Act. The report's portion on Iran is likely to reignite the controversy over the Hyde Act being used by the U.S. to condition and influence Indian foreign policy because of the way it is formulated. India's votes at the IAEA against Iran are described as steps New Delhi has taken to support U.S. efforts, rather than as decisions India took based on its own assessment as the Manmohan Singh government has always maintained.

Of course each government caters to different constituencies and will, therefore, put things differently. But there is a history to the controversy over this issue.

[Flashback: See 'So now we know for sure' on my reporting of a senior U.S. official's admission that India's votes were "coerced"; See also my interview two years ago to Abbas Edalat of the Campaign against Sanctions and Military Intervention against Iran on Rademaker's statement]

At the same time, there is something positive in the latest Bush report too: an acknowledgment for the first time that India's Additional Protocol will necessarily have to differ from the kind of AP that non-nuclear weapon states sign since the entire deal is predicated on India having a set of non-safeguarded, strategic facilities in the first place ...

Bush report says India complying with Hyde Act on IranAgrees that Indian ‘Additional Protocol’ will not be same as for non-nuclear weapon states

Siddharth Varadarajan

New Delhi: In a report to Congress that forms part of the ‘123 Agreement package’, the Bush administration has cited India’s votes against Iran at the International Atomic Energy Agency as part of “several steps” New Delhi has taken “to support the U.S.” in its efforts to “dissuade, isolate, and, if necessary, sanction and contain Iran.”

The report also gives more information about the steps India has taken to fulfil the commitments made to the United States in July 2005 than the United Progressive Alliance government has provided so far.

It reveals, for example, that India has formally committed its adherence to the guidelines of the Nuclear Suppliers Group (NSG) and Missile Technology Control Regime (MTCR) in separate letters dated September 8 and September 9, 2008, an announcement the Ministry of External Affairs has yet to make. The report also cites, as evidence of the steps India has taken to prevent the spread of enrichment and reprocessing technology, a letter sent to the International Atomic Energy Agency by Atomic Energy Commission Chairman Anil Kakodkar on August 18, 2008 in which he indicates India’s interest in participating as a supplier nation in the IAEA’s efforts to establish an international fuel bank. None of this is controversial, though the government’s failure to make this information public is likely to provide ammunition to the Opposition.

Submitted pursuant to Section 104(c) of the Hyde Act, the report is meant to detail the basis for President Bush’s determinations that India has fulfilled its “non-proliferation commitments” to the U.S. and is thus eligible for a waiver from America’s domestic restrictions on nuclear exports to the country.

Section 104(c)(2) outlines 10 subjects where the administration is required to provide Congress with the fullest possible information. Part (G) asks for a description and assessment of the specific measures “India has taken to fully and actively participate in” U.S. and international efforts against Iran “for its efforts to acquire weapons of mass destruction (sic) ... and the means to deliver WMD.”

The report submitted to Congress on Friday says the “Government of India has taken several steps to support the U.S. in this regard and to bring Iran back into compliance with its international obligations, particularly those pertaining to its nuclear weapons programme (sic).” Apart from the IAEA votes, it cites India’s compliance with U.N. Security Council resolutions and its “strong public line of support for P5+1 and U.S. diplomatic efforts to resolve international concerns with Iran’s nuclear program.”

In a separate Nuclear Proliferation Assessment (NPA) statement submitted to Congress last Friday, as part of the Hyde Act’s requirements, the Bush administration for the first time acknowledges that the Additional Protocol India will negotiate and sign with the IAEA will be different from what non-nuclear weapon states sign. “Because India will obviously have undeclared activities that are outside the scope of the safeguards agreement, the primary function of its Additional Protocol will not in general be the same as that of the Model Additional Protocol (that of detecting undeclared nuclear activities).” The assessment concludes that India’s AP “will probably provide some additional information or access to the facilities declared as civil, enhancing somewhat the effectiveness of the safeguards” there.

Seeking to allay fears about nuclear cooperation with the safeguarded Indian nuclear sector somehow giving a boost to its weapons programme, the NPA also notes that since “India’s non-civil facilities already include every capability likely to exist among the facilities declared as civil ... India thus would have no apparent incentive to divert material, equipment, or technology from its declared civil sector to military uses.” It adds that India’s non-civil sector already possesses the necessary capabilities “and a diversion would risk a strong reaction from the U.S. and other nuclear cooperation partners.”

On the safeguards agreement, the NPA asserts that although the text “includes preambular language noting India’s ability to take ‘corrective measures’ to ensure uninterrupted operation of India’s reactors, both the U.S. and the IAEA have concluded that the preambular language establishes the historical context of the agreement and does not affect the obligations [on termination of safeguards] which are contained in the agreement’s operational provisions.”

The NPA disputes claims by some critics of the nuclear deal that it would free up India’s own uranium for weapons use. The amount of fissile material available for potential weapons use is a function of not just the amount of natural uranium available, but also of factors such as overall fuel cycle capabilities such as the production of plutonium in reactors and reprocessing, it notes. “In this regard, [under the agreement], several indigenous Indian reactors which in theory have been available to support military programs, will be placed under safeguards and no longer be available for this purpose,” it says.

Finally, the NPA also acknowledges the ongoing dispute between India and the U.S. over the American claim to having certain “vested rights” over the Tarapur reactors despite the expiration of the 1963 bilateral agreement.

4 comments:

Quote“Because India will obviously have undeclared activities that are outside the scope of the safeguards agreement, the primary function of its Additional Protocol will not in general be the same as that of the Model Additional Protocol (that of detecting undeclared nuclear activities).” The assessment concludes that India’s AP “will probably provide some additional information or access to the facilities declared as civil, enhancing somewhat the effectiveness of the safeguards” there.Unquote

In view the highlighted words above, I fear the India-specific AP may contain language that might incorporate pursuit in perpetuity clauses, not just limited to the reactor plant alone but also extending to equipment manufacturer's plants in India who may have to handle the imported items.

My logic is thus: Because India has "undeclared" (??) activities, [meaning unsafeguarded facilities], the India-specific AP may end up having tougher inspection requirements so as to achieve as "leak-tight" safeguards as possible to prevent information transmittal of imported technology to the unsafeguarded sector. Perhaps this is what the Nuclear Proliferation Assessment statement is trying to say!

I do realise that you have already indicated your views on this aspect in a response to an earlier comment of mine, a few blog-posts ago.

Thanks for your comment. I am working on an article on India's AP and managed to take time off during my recent visits to Vienna to have a detailed chat with some of the IAEA's Safeguards Division and Office of Legal Affairs (OLA) experts. My initial sense from that chat is that India is totally free to cherry pick the elements from 540 it feels comfortable with. The IAEA people, in fact, saw the provision of greater information by India as something which would actually help them reduce the intensity of safegfuards. Also, there is little likelihood that complementary access provisions accepted by India would not include fairly comprehensive national security exclusions like the American AP.

>>the India-specific AP may end up >>having tougher inspection >>requirements so as to achieve >>as "leak-tight" safeguards as >>possible to prevent information >>transmittal of imported >>technology to the unsafeguarded >>sector

To add to that there will be an army of Daryl Kimball kinds who will wait with dripping tongues to add to their activist databases on India such as these under their so called nuclear threat iniative studies programs

I also wonder what was there in the classifed version of the NPA about civilian nuclear sector of India ?